Supreme Court of India

BHARMAPPA NEMANNA KAWALE AND ANR.versusDHODI BHIMA PATIL AND ORS.

Citation: 1996 INSC 446
Decided: 25 March 1996
Disposal: Appeal(s) allowed
Bench: K RAMASWAMYG B PATTANAIK

Holding

The issue of tenancy had become final under the decree, so the executing court was right to refuse the objection and the High Court’s direction was unjustified.

Summary

The civil court had decreed an eviction suit against the appellant, holding that he was not a tenant, and the decree became final. During execution, the appellant raised a fresh objection that there was no jural relationship because he claimed to be a tenant. The Bombay High Court, in Writ Petition No. 3319 of 1992, directed the executing court to reconsider the tenancy issue. The Supreme Court held that the question of tenancy had already been finally decided by the decree, and therefore the executing court was correct in refusing to entertain the new objection; the High Court was not justified in ordering a rehearing. Consequently, the appeal was allowed, setting aside the High Court’s direction, and no costs were awarded.

Issues considered

Whether a fresh objection to tenancy can be raised in execution of a decree that has already finally decided the tenancy issue.
Whether the High Court was justified in directing the executing court to revisit the tenancy question despite Section 85-A of the Bombay Tenancy and Agricultural Lands Act vesting jurisdiction in the revenue authority.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 185-A, s. 85-A

Subjects

evictiontenancyexecution of decreefinal decreejurisdictionBombay Tenancy and Agricultural Lands ActSection 85-Acivil court

Judgment

A BHARMAPPA NEMANNA KAWALE AND ANR.
v.
DHODI BHIMA PATIL AND ORS.

MARCH 25, 1996

B (K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Land Laws:

Bombay Tenancy and Agricultural Lands Act, 1984 :
c S.185-A-Suit for eviction decreed by civil court holding that defendant
was not a tenant-Execution of decre,,-Plea of want of jural relationship
raised in execution negative~High Cowt directing executing court to decide •
the issue of tenancy-Held, the issue of tenancy having become final held, the
issue of tenancy having become final under the decree, executing cowt was
D right in refusing to ente1tain the objection for executing the decree-High Court
not justified in directing executing court to consider the objection.

C!Vl1' APPELLATE JURISDICTION : Civil Appeal No. 5376 of
1996.

E From the Judgment and Order dated 22.11.91 of the Bombay High
Court in W.P. No. 319 of 1982.

Dr. R.B. Masodkar and Ms. Vrinda Dhar for the Appellants.

A.S. Bhasme for the Respondents.
F
The following Order of the Court was delivered :

Delay condoned.

Substitution ordered.
G
Leave granted. We have heard the learned counsel on both sides.

The admitted position is that the civil Court decreed the suit for
eviction against the appellant holding that he was not a tenant which order
had become final. The same plea of want of jural relationship is sought to
H be raised in execution. When the objection raised was negatived, the High
884
.,

B.N. KAWALEv. D,B. PATIL 885
' f
Court in Writ Petition No. 3319 of 1992 by order dated November 22, 1991 A
directed the 'executing Court to go into the question. Accordingly,, this
appeal by special leave came to be filed. ~

Shri Bhasme, learned counsel for the ~espondenfs, contended that irr
view of the specific language employed in Section 85-A of the Bombay ~
Tenancy and Agricultural Lands.Act, 1948 the only c ompete~t authority B
1

that has to go into the question is the revenue authority under the Ai:t and
civil Court has no jurisdiction to go into the question whether the appellant
is a tenant or not. There fore, the High Court was right in directing the
executing court to go into the questfon. It is rather ·unfortunate that the
respondent has allowed the decree ho_lding that he is not a tenant to C
become fmal. Having allowed it to bec~me final, it 'is not open to him to
contend that he is still a tenant under .the Act and therefore the decree is
nullity. Under those circumstances, the executing Court was right in refus-
ing to entertain the objection for executing the decree. The High Court
was not justified, the circumstances, in directing the executive Court to
consider the objection. • · , .· D·
·'"· t_ '
The appeal.is acco;dingly allowed. No costs .. :c:,

·R.P. •' App~al allowed.

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